Conservative role essential in indigenous recognition

- March 12, 2016

It was late in the 1990s that I first learned about the kindness and generosity that could come unexpectedly from the Right. Ron Castan QC, senior counsel for Eddie Mabo in the Mabo case, was a close mentor and friend. He was the first person to give me the political advice that I have carried with me ever since: if indigenous people want to achieve meaningful reform and recognition of indigenous rights in this country, we need to find common ground with the Right. Sometimes, as I was later to discover, the political Right can even turn out to be more generous towards indigenous people than the Left.

It was a surprising piece of counsel to me back then. Indigenous advocates were used to finding allies on the opposite end of the political spectrum. The Left is traditionally known for having compassion in matters of indigenous rights. Labor was the party of the underdog and, under the leadership of prime ministers like Gough Whitlam and Paul Keating, Australia implemented lasting reforms like the Racial Discrimi­nation Act 1975 and the Native Title Act 1993, reforms founded in principles of social justice and fairness that have proved indisputably important for indigenous people. As a young advocate in the 90s, I knew from experience that the Left often carried good intentions with respect to indigenous people.

But the politics of indigenous affairs in Australia is inevitably a pendulum, swinging from one political extreme to the other. It first swung right — with discrimination, assimilation and protectionism — then left — to rights and cultural relativism — before swinging right again to “practical reconciliation” and personal responsibility. While each of these political extremes has been beneficial and detrimental to indigenous people in different ways, my deep hope is that the nation can find its “radical centre” on indigenous issues, for our people have too long been what Patrick Dodson called the “playthings” of politics and political trends.

What we have thus far failed to find is the appropriate middle ground between the competing philosophical extremes: the “sweet spot” where rights meet responsibilities, where cultural prosperity meets economic achievement, where inclusion and equality meet appropriate recognition of enriching difference.

On a visit to Cape York Peninsula in 1994, the then indigenous prime minister of Greenland, Lars Emil Johansen, opened my eyes to the insight that rights and responsibilities go hand in hand. “Self-determination is the right to take responsibility. Self-determination is hard work,” he said. The self-­evident truth of this statement immediately struck me. Self-deter­mination is not a right that can be delivered to passive recipients by benevolent governments. Self-­determination only comes alive when indigenous people take control and leadership in their affairs, and when they effect positive change for themselves, as individuals, as communities, and as indigenous peoples. Johansen had offered what might be termed a “radical centre” insight that would take a while to sink into the national discourse.

Back in 1996, the pendulum had swung decisively from the Left to the Right. When John Howard came into power, the rights era ended and the responsibilities era began. Howard was correct in seeking to emphasise personal responsibility. I had also come to realise the potentially ugly effects of an unbridled rights agenda from the Left that isn’t tempered by the requisite emphasis on social norms and responsibilities. Without the balance of personal responsibility, the rights agenda in indigenous affairs can easily disintegrate into a narrative of perpetual victimhood, excuses, and what George W. Bush termed the “soft bigotry of low expectations”.

This does not mean that the rights era was wrong to give indigenous people their rights. It’s just that with rights must come the corresponding responsibilities. In this respect Howard’s intervention in the debate was needed, because the discourse required rebalancing. The capacity of the government to unilaterally deliver social uplift to the disadvantaged needed to be balanced with the realistic observation that government cannot do anything for you that you are not willing to do for yourself. But while rightly emphasising responsibilities, Howard unfortunately de-emphasised the importance of rights. Sadly for indigenous people, the Wik 10-point plan watered down our native title. The natural Left-Right tribalism was readily apparent. The Left had been the rights reformers, and the Right swung things back to responsibilities.

In 1998, in search of a better solution to the Wik controversy, Castan took me to meet the notorious leader of the NT Nationals, Ian Tuxworth, and his colleague Jim Petrich. We began a discussion with representatives from the far Right of rural Australian politics, bringing together the parties that were furthest apart from each other in the national debates. As Michael Kirby would later observe, Castan had “a rare capacity to bring warring factions together”. We commenced dialogue that might enable the two sides to find common ground. And we did.

After an extraordinary process of conversation and negotiation, the consensus we reached was set out in a draft head of agreement. The preamble to that agreement began as follows:

“For tens of thousands of years the Aboriginal people settled and owned this land. They were part of it in a unique and primary way. For the Aboriginal people, the land was the essence of their culture, and their culture was the essence of their being. To deny their ownership of the land is therefore to deny their very existence. It is for this reason that of all the wrongs done to the Aboriginal people over the centuries since European settlement, none has been more profound than the assertion of the doctrine that this land had been owned by no one before 1788.

“The confirmation by the High Court that the concept ‘terra nullius’ was a myth and that the Aboriginal ownership of land was reality, was a defining moment in the nation’s history … ”

The agreement set out terms for the future coexistence of indigenous rights and the rights of the pastoralists. The head of agreement concluded with the following statement:

“We recognise that the settlement will be one between citizens of the one, united Australia and that our futures are inescapably intertwined and we are, at a fundamental level, one people.

“The outcome of negotiations under this framework should be incorporated in a treaty and put to a referendum in the centenary year of Federation … “We also believe it will provide a great opportunity for the Australian people to show that we are able to move forward as a nation united, where all Australians can live their culture, achieve respect and realise their aspirations.”

This extraordinary agreement came out of negotiation with the far Right, with people I described as sitting “just this side of One Nation”. And yet it was substantive and practical, generous towards indigenous concerns and aspirations, and reassuring in the certainty its terms gave to pastoralists. It gave parties on both sides a shared sense of unity, compromise and common purpose.

Castan taught me a critical lesson in 1998. There is more common ground between indigenous people and people from the Right of Australian politics and society than conventional politics would have it. Many of the right-leaning commentators to whom I am referring are fundamentally decent and have goodwill. What I came to understand is that much of the Right’s objections to indigenous aspirations were rooted in its objection to these aspirations being identified as leftist moralising. But if we came to the Right without the leftist human rights lawyers by our side, the conversation could be quite different. It is a lesson I have carried with me in thinking about indigenous constitutional recognition: Nixon must go to China.

The Right will likely push back against Left-driven reform unless we are able to come up with a proposal for constitutional recognition for indigenous Australians the Right can fully embrace. Equally, the Left must be supportive — bipartisan commitment is required. And, most crucially, any proposal must be agreed to by indigenous people. There would be no point proceeding with a bipartisan commitment for a form of constitutional recognition that indigenous people do not want.

To be successful, the proposition therefore needs to speak to the concerns and aspirations of all stakeholders. Strategically speaking, however, if Castan’s theory is correct, a “radical centre” agreement position might arise if the disparate philosophies of those who are the furthest apart in their competing demands and concerns can be drawn together. Could agreement be found between the indigenous activists seeking ­substantive and practical constitutional recognition, and those on the political Right most passionate about protecting the Constitution from radical alteration?

In 2013, I crossed the Sydney Harbour Bridge to North Sydney to meet leading constitutional conservatives and liberals: Greg Craven, Australian Catholic University vice-chancellor and conservative republican; Julian Leeser, monarchist and Samuel Griffith Society convener; and Anne Twomey, black-letter lawyer and states’ rights advocate from the University of Sydney.

In time the group expanded and we would engage with far-Right liberals and those who rallied against any recognition that they felt would entrench race-based division. All were primarily concerned to uphold the Australian Constitution, maintain parliamentary supremacy and minimise legal uncertainty. All were exceedingly nervous about activist judges — a concern I did not share. All wanted unity, not division.

I admit that I was apprehensive meeting them for the first time. I had for months been reading their fiery criticisms of the recommendations of the Expert Panel on Constitutional Recognition of Indigenous Australians, of which I was a member, delivered to the prime minister in January 2012.

They hadn’t held back. They were adamant that a racial non-discrimination clause in the Constitution was not supportable. I was adamant that any constitutional recognition of indigenous peoples must be substantive and practical — it must provide a solution to the racial discrimination of the past, or else it was not worth pursuing. After all, it is all very well to argue that the Australian parliament should retain its supreme power to discriminate, without any judicial checks and balances, when you have never been and probably never will be subject to racially discriminatory laws.

Indigenous people understandably have less faith that ­majoritarian parliaments will look out for their minority interests — history has too often proven otherwise.

Eventually, however, I began to understand where they were coming from. They, too, began to better understand why I, and many indigenous people, want practical change. Through generous conversations and rigorous debates, those who were opponents of constitutional recognition became wary supporters. And wary supporters became eager advocates for the consensus position that emerged.

We found agreement on the proposition that, if the High Court should not decide what is in the interests of indigenous people in contentious political and policy matters, then surely indigenous people themselves should be guaranteed a fair say. The Constitution might be amended simply to guarantee the indigenous voice in indigenous affairs.

Together with the removal of the “race” references, replacement of the race power with an indigenous peoples power, and the compelling prospect of a fulsome declaration, outside the Constitution, containing the symbolic and aspirational statements of recognition, the package of reforms that emerged was conservative and modest in a legal and constitutional sense, but it was far from miserly. An indigenous body with constitutional status could give effect to indigenous people’s long sought after right to take responsibility and leadership in our affairs.

This book, The Forgotten People, fills me with great pride and immense hope that a broader consensus among all Australians may yet emerge. It is the result of genuine engagement with the Right. Its essays canvas the views of prominent conservative and liberal thought leaders. It represents the emergence of a neat synthesis arising out of what continues to be a fervently fought-out thesis (indigenous people want a constitutional guarantee of fairer future treatment) and antithesis (parliament is best placed to decide what constitutes the fair treatment of indigenous people).

This is an edited extract from Noel Pearson’s foreword to The Forgotten People: Liberal and Conservative Approaches to Recognising Indigenous Peoples, edited by Damien Freeman and Shireen Morris, published on Tuesday by Melbourne University Press.